MARY V BUCHBERGER, Employee

CITY OF SHEBOYGAN, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The employee worked for over fourteen years as a cleaner for the employer, a municipal transport company. Her last day of work was November 17, 2004 (week 47).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

On October 21, 2004, the employee was disciplined for poor job performance. The employee had performance failures, for example, would forget trash and had problems with incomplete cleaning. The employee reached the point in the employer's progressive disciplinary system that would have required discharge. However, on October 29, 2004, the employee signed a last-chance agreement. The employee was working with the employer to try to keep her job and was doing very well picking up all the garbage. She went to the employee assistance program and talked to her psychiatrist about her medication to ensure that her concentration level was up. She used a list to keep her duties in order.

On November 13, 2004 (week 46), the employee was 15 minutes late for work. The employee volunteers at a recreation center for mentally ill adults, and was volunteering on November 13. There was an argument between two of the patrons of the recreation center and the employee was concerned about the argument and about the possibility of physical violence. The employee was talking to them, and glanced at the clock. She misread the clock and as a result, missed the bus, and had to get a ride to work. She was 15 minutes late. The employee believed that the fact that she has a serious vision problem contributed to her failure to correctly read the clock. The employer, as a result of her violation of the last-chance agreement, allowed the employee to resign on November 17, (week 47 of 2004) rather than be discharged.

A quit in lieu of a discharge is a discharge for unemployment purposes. Therefore the commission finds that the employee did not quit her employment in week 47 of 2004, but was discharged. The next issue to be determined is whether the employee was discharged for misconduct connected with her work. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

The employee argued that her discharge was not for misconduct. The commission agrees. The employee's performance problems did not appear to be intentional. The undisputed evidence in the record indicates that the employee was trying to rectify her problems. The employee indicated that her performance failures resulted from a lack of concentration, and was making lists and working with the employee assistance program. While the employee should have been very careful to be at work in a punctual fashion after entering into the last-chance agreement, the employee's situation on the final day was unusual. The employee was attempting to resolve a conflict between two mentally ill adults and was concerned about physical violence. She glanced at the clock and misread it. While misreading a clock might not normally be a valid excuse for being late, given the context in this case, and the fact that the employee has a vision problem, the commission concludes that her tardiness was not intentional and was caused by extenuating circumstances. The employee's actions did not demonstrate such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 47 of 2004, the employee was discharged but that her discharge was not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2004, if otherwise qualified.

Dated and mailed May 4, 2005
buchbma . urr : 145 : 4  MC 664

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found the employee to be a credible witness overall, but believed that she should have been more responsible and made certain to leave her volunteer activity in time to catch an earlier bus. The commission agrees with the ALJ that the employee was a credible witness.

cc: Sheboygan Transit (Sheboygan, Wisconsin)

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uploaded 2005/05/09